High Court of Ireland Decisions

White v. Dublin Corporation [2002] IEHC 68 (21 June 2002)

THE HIGH COURT

JUDICIAL REVIEW

Record No. 2000 No. 492 J.R.

Between:

MAUD WHITE and MICHAEL WHITE

Applicants

-and-

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSES

OF THE CITY OF DUBLIN, IRELAND and THE ATTORNEY GENERAL

Respondents

KEVIN TRACEY

Notice Party.

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 21st day of June 2002.

1.      The applicants are next door neighbours of the notice party who applied for planning permission to the respondents in June, 1999 for a "new two storey over attic, single family dwelling" in the back garden area of the house at 11 Park Lane, Chapelizod, Dublin next to that occupied by the applicants at 10 Park Lane. These premises are adjacent to the Phoenix Park.

2.      In November, 1996 the applicants obtained planning permission in 1996 for an extension and conservatory to their house. The extension was designed not to overlook their neighbours. Two of the extension windows overlook the notice party's property at an oblique angle - one being an opaque bathroom window while the other is a landing window which overlooks a car space. The windows look out the front of the applicants' property and do not impinge on the notice party's privacy. Thereafter the applicants obtained a further planning permission for a larger conservatory which was obtained after consultation with the notice party in circumstances where no objection was raised by the notice party.

3.      In June, 1999 an initial application was made by the notice party to the first respondent (hereinafter referred to as Dublin Corporation) and the notice party informed the second applicant at the time of the application. He showed the plans to the second applicant and drew attention to the fact that east elevation of the proposed dwelling and indicated that the proposal was that there would be no windows on that elevation overlooking the applicants' property and to the south elevation which was to have two windows nearest to the applicants' property which windows would contain obscure glass.

4.      At this time the second applicant consulted his architect who informed him that while the proposed property was higher than the applicants' property that it would not overshadow or overlook the applicants and that in any event it was unlikely that the notice party would get planning permission. In light of these facts and in the interest of maintaining neighbourly relations the applicants did not object to the proposed development.

5.      It appears that at the time the notice party informed the second applicant that he had been assured in discussion with the Planning Department of Dublin Corporation that he would get planning permission.

6.      In fact the notice party was refused planning permission in August, 1999 and thereafter submitted an appeal to An Bord Pleanála and soon thereafter on the 17th September, 1999 submitted a fresh planning application to Dublin Corporation for a proposal which was very similar to that made in June, 1999 and in respect of which planning permission had been refused. The second applicant was informed of the nature of the second application by a neighbour and in light of this fact he did not personally inspect the planning file at that time or at any time thereafter until in or about the 27th May, 2000 when he learned for the first time that the notice party had been granted planning permission for a radically different development.

7.      The development in respect of which planning permission issued to the notice party was for what the applicants describe as a three storey house. The essential difference to the development as opposed to that in respect of which the planning permissions had been applied for were that the east elevation contained 6 windows and there were two windows on the north elevation with side bays facing east, 5 of which would overlook the applicants' conservatory and garden.

8.      It transpired on inspection of the planning file on the 29th May 2000 that fresh plans had been submitted to Dublin Corporation by the notice party and this had never been notified to the applicants or had been the subject of any fresh site notice or other public notice.

9.      On the 31st May, 2000 the second applicant spoke to the notice party who informed him that Dublin Corporation had forced him to change the plans but he had kept his word. He indicated the nature of the fresh planning permission which had been sought in September, 1999. The second applicant expressed his concern that he had not been notified at any time by the notice party or otherwise of the revised drawings that had been submitted to Dublin Corporation. He had spoken to the notice party in or about the 21st February, 2000 and on approximately 5 occasions between the 21st February, 2000 and the second week of March 2000. While the notice party informed the second applicant on the 26th May, 2000 that he had obtained planning permission he did not indicate at the time the nature of the permission granted.

10.      It is clear that the applications made by the notice party in June, 1999 and September, 1999 were made in circumstances where it was sought to avoid overlooking the applicants' property and this was indicated in the specifications prepared at the time by the notice party's architect. In September ,1999 a similar point was made in the appeal lodged with An Bord Pleanála.

11.      The applicants complain that the grant of planning permission in circumstances where they were not aware that Dublin Corporation had invited revised drawings and could not have been aware of same in light of the fact that the action of Dublin Corporation was undertaken in purported application of article 35 of the Local Government (Planning and Development) Regulations 1994 (hereinafter referred to as the 1994 Regulations) without any notification being required in respect of same such as to alert members of the public, including the applicants, of what was contemplated.

12.      The applicants complain that the house for which planning permission has issued will seriously injure the amenities of their property and greatly disturb them in the use and enjoyment of their property. They complain that the construction of the dwelling will result in a significant loss of privacy to their property and that it will be visually obtrusive and will overlook their property to a significant degree. It is complained that the revised drawings submitted by the notice party on the 21st February, 2000 showed revisions and alterations which went beyond mere modifications. These changes materially altered the form and appearance of the development. It is submitted that in light of the significant changes that Dublin Corporation should have required the notice party to publish a newspaper notice and erect a site notice informing the public that revised plans had been submitted to Dublin Corporation and were available for inspection.

13.      The evidence before this court shows that on inspection of the planning file in respect of the second application (3006/99) that the file was incomplete insofar as letters of consent to an extention of time and replies thereto were not included on the file when the same was inspected at the beginning of June 2000 and on 7 July 2000.

14.      The initial decision to refuse planning permission was for the following reasons:

1. The proposed house due to its height, position and window orientation in relation to the adjoining Phoenix Park, would result in the creation of a very prominent feature and in a high degree of overlooking of the public area of the park at this point thereby seriously reducing the use and enjoyment of this public facility;

2. The proposed house due to its height, site and design would be out of harmony with existing houses in the vicinity and would consequently be contrary to the proper planning and development of the area and would seriously injure the amenities of property in the vicinity.

3. The proposed house due to its height, size, design and position in relation to the immediately adjoining property would be seriously injurious to the amenities of such property through overshadowing and visual obtrusion;

4. The proposed house which would be located in the garden area of an existing house, would result in the creation of an inadequate curtilage to both the existing and proposed houses and inadequate and substandard provision of private open space to each property, with consequent serious injury to the amenities of property in the vicinity. The proposal would consequently be contrary to the proper planning and development of the area.

15.      In the appeal to An Bórd Pleanála it was indicated that prior to the application for planning a meeting was held between the notice party Mr. Tracey and the planning officer. This was followed by telephone conversations with the architect Kevin Carr-Driver based on faxes which were forwarded of the draft proposal. The appeal also referred to the fact that the comments by the planning officer were taken on board at these stages and dramatically shaped the form of the proposal. It was indicated that there had been no objections to the planning proposal and the owner had made every effort to make all neighbours aware of the proposed development by depositing copies of the drawings at each house in the immediate vicinity.

16.      In dealing with the grounds of refusal of the planning application it was indicated on the appeal that the windows on the proposed house which face towards the existing house have obscured glass in order to prevent overlooking.

17.      The second planning application dated the 16th September, 1999 was addressed for the attention of Mr. Sean Murphy in the Planning Department of Dublin Corporation. The evidence before this court shows that prior to the submission of this application a consultation was held with Mr. Murphy at which stage concern was expressed about the fact that the earlier application had been refused after an indication had been given that the same would be recommended by the planning officer for approval. The consultation with Mr. Murphy resulted in certain modifications of a relatively minor nature being made to the terms of the original application with a view to satisfying the criterion that the application should be considered as a different application to that previously refused. Mr. Tracey has sworn that the planning authority indicated the type of modifications which were required and that if these modifications were carried out to the original proposal that that the planning authority would be well disposed to granting planning permissions for the proposed development. In the course of cross examination Mr. Tracey indicated that Mr. Murphy had given the impression that a mistake was made when he initially recommended a refusal of planning permission. Mr. Murphy suggested certain changes to the initial application to enable a fresh application to be made. Later Mr. Tracey became anxious when Mr. Murphy left the Planning Department of Dublin Corporation and the planning application did not appear to be processed within the time frame indicated by Mr. Murphy. At this stage Mr. Tracey engaged a town planner who made the case to Dublin Corporation's Planning Department that Mr. Tracey had been badly treated. Mr. Tracey indicated in evidence that Mr. David Dunne of the Planning Department was apologetic at a meeting held on the 29th November, 1999. It was he who suggested that the article 35 procedure be followed and that the orientation of the house be turned around.

18.      It is conceded by Dublin Corporation that the description of the fresh application was similar to the earlier application. It is stated, however, that the application was different in a number of respects including, inter alia, the relocation of the proposed house from the rear boundary with no. 10 from 3.92 meters to 4.92 meters and a first floor balcony was omitted.

19.      A series of letters were sent by or on behalf of Mr. Tracey to the planning authority in October, 1999 which indicate concern on his part that the planning application was not getting the attention it deserved. These are letters of the 20th October, 1999, the 27 October, 1999 and the 31 October, 1999. In the letter of the 20 October, 1999 from Mr. Carr-Driver he stated as follows:

"We understand that Sean Murphy has recently left the Planning Department at Dublin Corporation. Prior to his departure we had extensive discussions with him regarding the above application, which was lodged on September 16, 1999.

We had previously lodged an application in June of this year following discussions with Sarah Duffy who had been positive regarding the design at that time. Unfortunately, she, too left the Department prior to the end of the statutory period, and we understand that there was no formal hand over of the application to Sean Murphy, who subsequently issued a refusal.

We then met on two occasions with Sean Murphy who recommended a number of alterations which we incorporated into the design. He then confirmed that he would put the scheme forward for approval and that this could be turned around within four weeks of submission, prior to his departure.

We have learnt that Sean Murphy has left earlier than we were previously advised by him, and that there was no formal hand over.

Please advise us, at your earliest convenience, who is to be the new officer in charge of this application as we would like to organise a meeting in order to discuss the background that has lead to the present design which was considered acceptable for approval by Sean Murphy."

20.      In his letter of the 27th October, 1999 Mr. Carr Driver stated the same as in the letter of the 20th October. On the 30th October Mr. Tracey addressed a letter to Mr. John Martin, Deputy Dublin Planning Officer and stated as follows:

"I write this letter to explain the situation that has arisen with regard to our application for planning permission for a family dwelling at 11 Park Lane, Chapelizod, Dublin 20.

Having had meetings with Ms. Sarah Duffy and fulfilling her requirements prior to our submission we were shocked to hear that Ms. Duffy had left the Corporation without passing on any details to her work colleagues. We were further shocked when permission was refused on totally different grounds. Having then met with Mr. Sean Murphy we resubmitted our application based on his requested alterations and due to the situation that had occurred with Ms. Duffy we were promised a quick turn around. We are now further disappointed that this did not happen and that Mr. Sean Murphy has left the Corporation.

We would wish to discuss the matter with you or the new officer in charge at your earliest convenience.

I attach herewith a copy letter from my Architect Mr. Kevin Carr Driver which to date has not been acknowledged.

We await your reply and hope that you will give this matter your close attention."

21.      It is notable that none of these letters were replied to and in these proceedings no affidavit has been sworn by Mr. Seán Murphy or indeed by Ms. Duffy who previously dealt with the application made in June, 1999 and is alleged to have been favourably disposed to the initial application to dispute the substance of these letters. However, a meeting was held on the 29th November, 1999 between the notice party and his architect and a town planner on his behalf on the one hand and Mr. David Dunne, Senior Planner, Kieran Rose, Senior Executive Planner and Michael McGinty, Executive Planner on the other hand. However, it is remarkable that by this stage no attempt had been made to verify what was allegedly represented by Ms. Duffy and in fact no effort appears to have been made at any stage to check with her the veracity of what is alleged in this respect. While Mr. Murphy has not sworn any affidavit, Mr. Rose sought to put forward what can only be categorised as hearsay upon hearsay in indicating what he understands was stated by Mr. Murphy to Mr. McGinty of the Planning Department. While no affidavit has been made by Mr. Murphy and this court is asked to accept what Mr. Rose understands may have been said by Mr. Murphy to Mr. McGinty who has not given evidence in these proceedings, it is again noteworthy that no minute appears to exist of any conversation which took place between Mr. McGinty and Mr. Murphy. While Mr. Rose has categorised the complaints contained in the letters written in October, 1999 as "significant" it is remarkable that six weeks after the letters were written that no effort was made to check the veracity of the points made in these letters and no evidence has been put forward to this court to show that the assertions made in the correspondence were untrue.

22.      In light of these assertions it is clear that the notice party was somewhat perplexed in regard to the handling of the file in the planning department. I am informed that no notes have been kept on file in the Planning Department in regard to these matters, and in the case of Ms. Duffy, she left the Planning Department some time prior to the decision made in August, 1999 and it appears that the planning officer who inherited the file was not aware of the contact made between his predecessor and the notice party and his architect and further Mr. Murphy was transferred on secondment to An Bord Pleanála sometime in last September or early October, 1999 again in circumstances where it appears that no minute was retained in regard to his discussions with the notice party or his representative(s). This clearly has given rise to some of the difficulty in this case and it is clearly a situation which gives rise to decisions being made by planning officers without regard to prior discussions and in circumstances where applicants for planning may be given indications which are worthless. It is a situation which is bound to frustrate applicants and likely to give rise to what may appear to be arbitrary decisions. I am satisfied that the failure to minute such discussions is such as to lead inevitably to decisions being made in total disregard of prior representations of views made by members of the Planning Department as those inheriting files are not in a position to know what, if any, prior discussion may have taken place with the developer or his/her agent(s). It was conceded by Mr. Rose that files can be passed around without anyone having any idea as to what has taken place in the way of discussions prior to that time.

23.      It appears that at the meeting of the 29th November, 1999 that the points that had been made in the correspondence were reiterated and it was indicated at this meeting to the notice party that if certain specific changes were made to the proposed development, addressing the reasons for refusal, that a planning application would be considered in light of these changes. It is indicated by Mr. Rose on behalf of Dublin Corporation that it was stated that the article 35 procedure was the appropriate procedure and that this would require time extensions. It does appear, however, that the prevailing view in the Planning Department of Dublin Corporation at that time was not in line with the views of either Ms. Duffy or of Sean Murphy. While the planning application was very similar to that previously made in June, 1999 it appears that the prevailing view at this time was that a planning decision could not be made in favour of the notice party without some significant change being made to the proposal refused in August, 1999. It appears that for this reason the article 35 procedure was initially mooted at the meeting of the 29th November, 2000 and the proposed alterations were proposed by members of the Planning Department of Dublin Corporation. It is to be noted that no minute of the proceedings of this meeting were ever taken and accordingly any inspection of the file thereafter would not indicate what transpired at this meeting. Mr. Rose indicates that the purpose of this meeting was to address the reasons for the refusal of planning permission in August, 1999. I understand this to mean that the Planning Department was disposed to adopt a positive approach to the application for planning permission at that time, provided the reasons appearing for the refusal of planning permission in August, 1999 could be overcome.

24.      The evidence before this court shows that time extensions were given in this case although it is clear that the planning file did not reveal the existence of all these extensions. Ultimately after contact between the notice party and the Planning Department of the respondent the notice party submitted fresh plans on the 20th February, 2000 and ultimately the decision the subject matter of these proceedings was made granting the applicant approval in line with the terms of the revised drawings which had been submitted.

25.      While the respondent did not consider that any fresh notices or advertisements was required and made no such requirement, the notice party asserted that a notice had been agreed with his architect Mr. Carr-Driver and the Planning Department of the respondent and that he had in fact erected such a notice. There is no independent verification of this and in fact the Planning Department denied that any such agreement was reached and it is clear that no requirement was made. It is furthermore clear that had a fresh site notice been required by the Planning Department at the time that the publication of a fresh notice in a newspaper circulating in the area would more than likely have been required. While Mr. Tracey claims to have erected a fresh site notice at his house in February, 2000, no such notice was witnessed by the applicants or by anyone else and I have considerable doubt that any such notice as alleged was in fact erected at the time. Nevertheless, even had

26.      Mr. Tracey erected such a notice as alleged, it is misleading in its terms and was not required by Dublin Corporation and was not accompanied by any newspaper notice at the time. While Mr. Tracey believed that a verbal requirement for such a notice was made by Mr. Rose to his architect and it may be that the matter was raised between the architect and Mr. Rose, it is clear that no formal requirement for a fresh site notice or newspaper notification was made by Dublin Corporation.

27.      In fact Mr. Rose did not rule out the possibility that such a discussion took place with Mr. Carr-Driver, the architect retained by Mr. Tracey.

28.      Accordingly, the issue remains whether such a site notice and/or newspaper notice have been required by the respondent in light of the circumstances of this case.

29.      The case made on behalf of the applicant is that the nature of the changes from the terms of the planning permission sought initially in September, 1999 to the revised drawing is such as to be very far removed from "modifications" and that the changes contemplated were such that should have required either a fresh planning application or alternatively fresh advertising of same and a fresh site notice to be erected.

30.      In the grounds of opposition filed on behalf of Dublin Corporation it is pleaded, inter alia, that the applicants are statute barred from seeking any relief by way of an application for judicial review pursuant to s. 82 of the Act of 1963 as amended, that the applicants have failed to state any grounds which would entitle them to the relief claimed and/or any discretionary relief and it is further denied that this respondent caused and/or contributed to the ignorance of the applicant's right of action. Essentially the grounds of opposition represent a traverse of the applicant's grounds.

31.      In the supporting affirmation of Kieran Rose he indicates that he does not agree that the public notices did not fairly, accurately or adequately describe the nature and extent of the proposed development. He considers that the description "new two-storey with attic" is sufficient to alert the public that the proposed development incorporated attic space. He takes issue with the description of the proposed development as a three storey building. Mr. Rose further takes issue with Mr. Kelly insofar as it is suggested that the plans and drawings submitted were not sufficiently detailed. Furthermore, Mr. Rose does not agree with the assertion that the article 35 changes requested "changed the whole character of the proposed development and materially altered the planning application" such that it warranted a fresh application. He asserts that from a planning perspective the changes requested do not fundamentally alter the nature of the development as proposed initially by the applicant but are modifications of the original plans as set out in article 35.

32.      Mr. Rose further takes issue with the assertion by Mr. Kelly that the decision to grant planning permission was contrary to the proper planning and development of the area by virtue of overlooking of adjoining properties and inadequate private open space. He states that while the proposed development, as with almost all proposed developments, would have some negative effect on adjoining properties it was felt from a planning perspective that such a negative effect was not sufficient to warrant a refusal in light of the changes made.

33.      Mr. Rose says that there is no high degree of overlooking and that there are no directly opposing windows and so overlooking of rooms is minimised. He agrees that there is a greater level of overlooking from the proposed dwelling over the garden of the existing house owned by Mr. Tracey. Under cross examination he conceded that the location of the windows on the house as granted permission is completely opposite to what had been proposed in the planning application. He did not consider the open space issue to be critical and he considered that the revisions were sufficient to allow for a permission. While the Planning Department had indicated prior to the grant of planning permission that open space should be provided to development plan standards, it is agreed that these standards were not strictly adhered to in the grant of planning permission and in this regard Mr. Rose indicated that the Planning Department had regard to residential density guidelines issued by the Department of the Environment and on this basis relaxed the standards otherwise applying in the development plan.

34.      Mr. Rose conceded that every elevation of the proposal was changed in the article 35 procedure.

35.      With regard to the question of fresh notification of the article 35 procedure Mr. Rose indicated that he considered it to involve essentially the same application as originally made "from a planning perspective". While the proceedings of the meeting of the 29th November 1999 were not minuted and were accordingly not on file, Mr. Rose indicated that it is usual for meetings to occur without being minuted. He conceded that as a result that there was nothing on file from the 29th of November, 1999 to the following 25th January, 2000 to indicate that the article 35 procedure had been raised and was being followed. Mr. Rose conceded that to be aware of the fresh drawings submitted under the article 35 procedure one would have had to be regularly checking the application at the Planning Department of Dublin Corporation.

36.      Mr. Rose indicated that with regard to the contents of the Planning File that no record is kept of the documents which are put on file.

37.      It was further conceded by Mr. Rose, in the context of the initial refusal of planning permission, that no provision of the Dublin City Development Plan precludes overlooking of the Phoenix Park. A clear conflict exists between Mr. Tracey and Mr. Rose in regard to whether he lodged a revised notice and whether he erected same on site on the 15th February, 2000. Mr. Tracey states in his affidavit that the revised notice "was not requested or a requirement of Dublin Corporation".

38.      A decision to grant planning permission was made on the 20th March, 2000. While Mr. Tracey concedes that there is a degree of overlooking of the applicants' property he says that he did not object to their development of a conservatory in their garden which he says is equally as significant as any impact which his property would have on theirs. Mr. Tracey asserts that he has acted with the utmost integrity and appropriateness in terms of the manner in which the application was dealt with. He says that the nature of what was permitted was what had been originally applied for and he asserts that the modifications required did not change the nature and extent of what was applied for and would have had minimal impact on the applicants' property.

39.      The essential issue in these proceedings in regard to the planning acts and the permission granted to the notice party is whether the procedures followed were in accordance with law insofar as the matter was dealt with under article 35 in circumstances where no requirement was made that the matter be re-advertised or subject to a fresh site notice.

40.      With regard to the fresh notice which the notice party states he erected on his site, while I have considerable doubt about this fact, I consider that it was in any event deficient insofar as it did not refer to the planning application register reference number and was inaccurate insofar as it referred to "an application for revision to planning permission" in circumstances where no planning permission had been given at that time and no decision had been made by the planning authority to grant planning permission to the notice party. Most importantly no reference was made in that notice to the article 35 procedure.

41.      The evidence before this court shows that in other cases Dublin Corporation in applying the article 35 procedure required the publication of fresh statutory notices and it is clear that the procedure in question envisages such an approach in certain cases.

42.      It is clear that in the instant case the failure to re-advertise and re-notify the proposed modifications resulted in the applicants not being aware of the proposed modifications and they were clearly induced into a belief that if any planning permission were granted it would be for the development for which the notice party sought planning permission in September, 1999. While Mr. White did not look at the planning file at that time, I accept his evidence that he was informed by a neighbour of the substance of the application. Insofar as any difference in recollection exists as between Mr. White and Mr. Tracey, I prefer the evidence of Mr. White and I accept his evidence in its totality.

Submissions on the planning issues:

43.      It is submitted on behalf of the applicants that

(a) the site notice did not properly or adequately describe the nature and extent of the development and that the description of the proposed development as a two storey house with attic was misleading in that it could not have conveyed to the public the fact that the proposal included that the attic space be developed as two rooms and that windows were to be incorporated in the roof of the dwelling;

(b) the plans accompanying the application were insufficient to satisfy the requirements of Article 23 (1) of the Planning Regulations in that the drawings of elevations did not show the main features of the buildings which would be contiguous to the proposed development. It is submitted that it was critically important that the relationship of the proposed dwelling house to the existing properties be clearly illustrated to enable the planning authority to give proper considerations to its impact on the existing properties;

(c) Dublin Corporation proceeded on an erroneous understanding or interpretation of article 35 of the 1994 Planning Regulations. It is submitted that Dublin Corporation could not have been disposed to granting such permission in circumstances where it had some six months earlier refused the notice party permission for the construction of a similar dwelling house on the grounds that it was contrary to the proper planning and development of the area;

(d) the revised drawings were insufficiently detailed to enable it to make a proper and lawful decision on the notice party's application and that they did not meet the requirements of article 23 of the planning regulations.

(e) the revisions and alterations set out in the revised drawings were of such a degree to warrant a fresh planning application. Alternatively, Dublin Corporation ought to have directed the notice party to re-advertise the planning application and to erect a new site notice for the purpose of notifying members of the public of the submission of revised drawings, particularly having regard to the passage of time that elapsed since the lodgement of the planning application.

(f) Dublin Corporation failed to comply with the principles of natural and constitutional justice and fair procedures in not directing the notice party to re-advertise the planning application and/or erect a new site notice and/or give members of the public notice of his intention to submit revised drawings on his application;

(g) the development for which Dublin Corporation granted planning permission to the notice party was not the development notified to the applicants and the public by notice erected on the site of the proposed development and the newspaper notice published by the notice party;

(h) the procedures adopted by Dublin Corporation in processing and determining the notice party's application under article 35 of the 1994 Regulations without requiring the notice party to erect a new site notice and publish a newspaper notice for the purpose of alerting the public to the revised drawings submitted to the planning authority deprived the public of notice of the proposed development and of an opportunity to make representations or objections thereto;

44.      Particular reliance is placed by the applicants upon the decision of the Supreme Court in the case of Monaghan UDC v. Alf-a-Bet Promotions Ltd. [1980] I.L.R.M. 64. Particular reliance is placed upon the dicta of Henchy J where at page 68 of the judgment he addressed the requirements of notification of a planning application, stating, inter alia, as follows:

"Article 15 of the regulations requires the notice in the newspaper to state, inter alia, 'the nature and extent of the development' This it failed to do. Considering that one of the primary objects of the published notice - if not the primary object - is to enable interested members of the public to ascertain whether they have reason to object to the proposed development, the efficacy of the notice in this case was negatived by the omission from it or any indication of the real nature or extent of the proposed development."

45.      Later in the same judgment dealing with the necessity to comply with the planning regulations Henchy J. stated as follows:

"[W]hen the 1963 Act prescribed certain procedures as necessary to be observed for the purpose of getting a development permission, which may affect radically the rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance with the prescribed procedures should be treated as a condition precedent to the issue of the permission. In such circumstances, what the Legislature has, either immediately in the Act or mediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with."

46.      Later at page 69 Henchy J. stated as follows:

"[W]hen notification of the application is shown to be made in a newspaper, one of the primary purposes of the notification is defeated if the notice does not, at least in fair and general terms, state the nature and extent of the proposed development. Whether the unilluminating words used in this case ('alterations and reconstruction') were chosen deliberately for their vagueness, or casually through inattention to the stated requirements of the regulations, they were so wanting in compliance with the spirit and the purpose of the Act, and the regulations that the published notice, and therefore the application, must be deemed to have been nullified."

47.      Thereafter at page 70 of the report Henchy J. stated as follows:

"The precise extent to which a published notice must comply with the requirements specified in the regulations must depend on the circumstances of the particular case. Consequently, notwithstanding decisions such as Dunne Ltd. v. Dublin County Council [1974] I.R. 45, it should not be assumed that defects in a published notice, such as the wrong name of the applicant, or an inaccurate or incomplete description of the premises or of its location, or a failure to state the existing use of the premises, will necessarily be overlooked. Such powers as have been given to planning authorities, tribunals or the courts to operate or review the operation of the planning laws should be exercised in such a way that the statutory intent will not be defeated, intentionally or unintentionally, by omissions, ambiguities, misstatements or other defaults in the purported compliance with the prescribed procedures."

48.      In the same case Griffin J. stated at page 73 of the report, inter alia, as follows:

"The purpose of the Acts, therefore, is to ensure proper planning and development, not in the interests of the developer, but in the interests of the common good. The primary purpose of the requirements of Articles 14 and 15 in relation to the notice in newspapers is to ensure that adequate notice is given to members of the public, who may be interested in the environment or who may be affected by the proposed development, that permission is sought in respect of that development, so as to enable them to make such representations or objections as they may consider proper."

49.      Similar language was used by Griffin J in the case of Cordaun Homes v. Kildare County Council [1983] I.L.R.M. 1 where he indicated that the purpose included enabling members of the public to ascertain whether they may have reason to object to the proposed development.

50.      Further reliance is placed by counsel for the applicants upon the dicta of Walsh J. in East Donegal Co-Operative v. Attorney General [1970] I.R. 317 at 341 where he stated as follows:

"[T]he presumption of constitutionality [of an Act of the Oireachtas] carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice."

51.      The applicants complain that the decision taken on 29th November, 1999 to pursue the matter utilising the article 35 procedure was unreasonable in light of the earlier decision in August, 1999 to refuse planning permission to the notice party and having regard to the stated basis of the application 3006/99 being one to avoid overlooking the applicants' property. It is submitted that the decision to turn around the dwelling 90 degrees was fundamentally inconsistent with the decision of August, 1999 and the submissions made at the time by the notice party.

52.      With regard to the decision not to direct fresh notices in February, 2000 it is submitted that the decision is wanting in procedural fairness and was one which deprived the applicants of a right to object to the then proposal. It is submitted that the planning authority has no discretion when it comes to a matter of procedural fairness and that the authority is bound in any event to adhere to the requirements of procedural fairness.

53.      Counsel further submits that in the instant case the regulations envisaged notice being given. Counsel poses the question: 'What more does fairness and natural justice require?' It is submitted that what was required was at a minimum that the public be given notice and an opportunity to submit representations. It is submitted that the principles outlined in the case of O'Keeffe v. An Bord Pleanála have no application to the discretion to direct fresh notices if the decision results in a clear unfairness.

54.      It is further submitted that the 1994 Regulations do not contain all the rights, obligations and duties that arise in a planning application. It is submitted that the provisions of the Regulations must be supplemented by fair procedures.

55.      In this regard it is submitted that if this court were to take the view that under the terms of the 1994 Regulations a fresh site notice and newspaper notice was not required that the principles of natural justice required that notice be directed to be given by a fresh site notice and newspaper notice or advertisement in respect of the fresh plans received by the planning authority on the 21st February, 2000. It is further submitted that having regard to the provisions of article 17(3) of the Regulations that the discretion vested in the local authority could only be operated in one way having regard to the requirements of the principles of natural justice.

56.      It is submitted that insofar as the evidence of Mr. Rose suggests that a decision was made not to require a fresh site notice and newspaper advertisement that the decision made was not one that was open to the planning authority to make. It is submitted that the public right to object or make submissions might as well have not existed as the public, including the applicants, were kept in the dark at the time. It is submitted that Dublin Corporation must have been aware because of the unusual circumstances that gave rise to the application of the article 35 procedure in the instant case of the serious misrepresentation that must have been left in the minds of the public in light of the failure to require fresh notice to be given. In this regard particular reference is made to the stated reasons for the refusal of planning permission given in the decision of the planning authority in August, 1999 on planning application 1822/99. It is submitted that the decision made on the 29th November, 1999 represented a complete departure from the representations made to the public in the earlier decision and from the terms of the representations made by the notice party in applying for planning permission of avoiding overlooking the adjoining property.

57.      It is further submitted that the notices given of the planning application in September, 1999 did not give an accurate description of the nature and extent of the development and on this basis it is submitted that the failure goes to the jurisdiction of the planning authority to grant planning permission in this case. Furthermore, it is submitted that the drawing submitted with the planning application did not comply with the regulations insofar as the elevations of the contiguous property was not indicated. In this regard reference is made to the fact that the conservatory abutting the property at 10 Park Lane is not shown. In this regard particular reliance is placed on article 17 (1) (c) of the 1994 Regulations.

58.      It is further submitted that the decision impugned in these proceedings is inconsistent with the earlier decision to refuse planning permission to the notice party, particularly having regard to the reasons given for the former decision. It is submitted that the decision is irrational and unreasonable having regard to the earlier planning decision in August, 1999 and in particular the submission that there could be no overlooking of the applicants' property.

59.      It is further submitted that the decision to deal with the notice party's application on the basis of the article 35 procedure was activated, not by proper planning considerations, but rather by public relations concerns in light of the criticism advanced by or on behalf of the notice party in October 1999 and at the meeting of the 29th November, 1999. It is submitted that the decision made to invoke the article 35 procedure was in light of a legitimate complaint made by Mr. Tracey.

60.      On behalf of Dublin Corporation it is submitted that this Court is being asked to perform an exercise such as was sought in the case of O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 by intervening in the area of a discretion vested in the respondent. Counsel relies upon the fact that the notice party did not state in evidence that he was given a promise but rather he was given a strong assurance that his application would be dealt with under the article 35 procedure. It is submitted that there is no evidence of non-planning considerations informing the decision in the case. It is submitted that the appropriate test to apply is whether matters were taken into account which were not proper planning matters. Reliance is placed upon the evidence of Mr. Rose to the contrary.

61.      It is further submitted that the planning code has conferred rights on members of the public which did not exist previously. It is submitted that rights can be limited and at common law the most a person could do in relation to any development would be to sue the developer. It is submitted that there is no recognised right to object save in accordance with the Planning Acts. It is submitted that the Planning Acts have been carefully crafted to balance the rights of a developer with those of the public. It is submitted that members of the public have limited rights to be exercised within the planning code. Counsel contrasts the provisions of article 17 (2) and 17 (3).

62.      It is submitted that the notices in the instant case in September 1999 were not misleading or inadequate. Counsel submits that the exercise of the power in Article 17 (3) to require a further notice to be given or published is entirely a matter for the planning authority. It is submitted that the planning authority has an absolute discretion to be exercised rationally. Counsel poses the question: 'Would a reasonable member of the public be mislead by the site notice?' It is submitted that the notice was such as to put a prudent man on further enquiry. Counsel relies upon the decision of the High Court in the case of Irish Hardware Association v. South Dublin County Council and Barkhill Ltd. (Unreported, High Court, Butler J., 19 July, 2000) and the subsequent decision of the Supreme Court in the same case [2001] "2 I.L.R.M. 291 and submits that essentially the same issue arose in that case and the High Court was not prepared to set aside the planning decision made in that case.

63.      With regard to the drawing submitted with the planning application in the instant case it is submitted that there was no breach of the Regulations in regard to same and counsel submits that a member of the public would not be mislead. It is submitted that no prejudice has been shown to exist by reason of the alleged non compliance with the Regulations governing the provision of drawings or plans and that in these circumstances the Court should be slow in any event to grant the applicants the relief which they seek. Counsel further submits that the Regulations in question are directory in nature.

64.      With reference to the article 35 procedure, counsel submits that one of the duties of a planning authority is to protect the interests of applicants. Counsel submits that the planning authority have a clear discretion whether to invoke the procedure in question and furthermore whether to require fresh notification to be given. Counsel submits that once the initial notice governing the planning application has been given that a member of the public will have constructive notice of any application of the article 35 procedure and it is submitted that the prudent man will be put on further enquiry.

65.      Counsel submits that the procedures governing planning are not to be compared with applications for licences where there may be an express obligation to put an applicant for a licence on notice of matters coming to the attention of the licensing authority. Counsel submits that authorities governing the granting of licences are not such as to apply in the instant case to import fresh procedures other than those appearing in the Regulations themselves. It is submitted that there is no evidence in the instant case of any departure from the established practice. Mr. Rose has indicated that the planning authority took into account all relevant material in making its decision in this case. It is submitted that the procedures laid down in the Planning Regulations are not such as to incorporate the principle 'audi alteram partem'. The planning authority has indicated that as the footprint of the new building was the same as that in respect of which planning permission was sought that it did not consider that a fresh notice was required. It is submitted that while it has been suggested that the approach taken in the instant case was at variance with the approach in other cases that no ground of relief in the instant case exists on the basis that there is any inconsistency in the approach of the planning authority. It is submitted that in the instant case there is no evidence of inconsistent planning decisions.

66.      With regard to the Monaghan U.D.C. -v- Alf-a-Bet Promotions Ltd. [1980] I.L.R.M. 64, counsel submits that what is involved is the fairness of the procedure. It is submitted that what was involved in that case was met by the requirements of article 17 of the Regulations.

67.      With reference to the application of the Article 35 procedure in the instant case, it is submitted that there is no evidence of contamination of the decision making process and one cannot speculate in the absence of evidence as to whether the planning authority took into account extraneous material, whether by reference to the fact that the letters addressed to the authority were not replied to or otherwise. In essence it is submitted that such discretions as were exercised by the planning authority in the instant case were within jurisdiction and were not irrational or unreasonable.

68.      On behalf of the notice party it is submitted that the case turns on what is described as a 'reasonableness test' based upon the decision in the case of O'Keeffe v. An Bord Pleanála [1993] I I.R. 39. Reliance is placed upon the discretion of the planning authority to require a fresh notice or notices to be given. It is submitted that the actual decision taken in this regard was not so unreasonable as to fly in the face of plain reason and common sense.

69.      Counsel further submits that the original notice was accurate insofar as it described the proposal as one for a two storey building with attic and this complies with the house the subject matter of the impugned decision. Counsel submits that the planning authority acted reasonably. It is submitted that the same notice adequately described each development and for this reason the planning authority was entitled to conclude that no new notice was required.

70.      It is further submitted that the plans and particulars submitted by the notice party complied with the Planning Regulations. It is submitted that any alleged non compliance in this case comes within the de minimis rule and is not such as to prevent there being substantial compliance with the Regulations.

71.      In reply on the planning issue it was submitted by Mr. Rogers that the notice in this case was misleading and did not comply with Article 17 (2) of the Regulations. It is submitted that this was the general situation giving rise to an obligation on the part of the planning authority to require a fresh notice to be given in the light of the application of the article 35 procedure in this case. It is submitted that in light of the background in this case the failure to direct fresh notification was unreasonable.

72.      Counsel submits that one should not look upon the right to object to a planning application merely in the terms of the Planning Acts and Regulations. It is submitted that a member of the public has a constitutional right to constitutional justice being applied in the exercise of its procedures by a planning authority. It is submitted that if for any reason a right to object under article 34 of the Regulations becomes inoperable for any reason then a narrow construction of the provision cannot be maintained.

73.      It is further submitted, contrary to the submissions made by counsel for Dublin Corporation that one has a right to notice under the planning code in line with the provisions of Article 17 of the 1994 Regulations.

74.      Counsel submits that the test regarding the notice is not whether a reasonable member of the public would be mislead but whether the Regulations were complied with and whether the notice informed of the nature and extent of the proposed development.

75.      With regard to the drawings counsel indicates that the applicants rely upon the report of the planner who indicated that the drawings were not adequate.

76.      It is further submitted that it strains the provisions of the planning code to suggest that by reason of the original planning notice the public had constructive knowledge of any proposed modification under article 35. It is submitted that the construction contended for on behalf of Dublin Corporation ignores the statutory intent of article 17 of the Regulations which emphasises throughout the necessity of notice being given to the public.

Conclusions on the Planning Issue:

(a) The initial notice of the planning application:

77.      While the applicants contend that the initial notice did not accurately describe the nature and extent of the proposed development insofar as it referred to same as a two storey dwelling with attic as opposed to a three storey dwelling, I am not satisfied that the description given, while clearly having a potential to mislead, was one which did actually mislead any person. It is clear that a planning authority has a duty to ensure that the notices accurately reflect the nature and extent of the proposed development, I am satisfied that even if one could categorise the description as falling short of what was required that the same if in breach of the Regulations could be described as falling within the de minimis rule and accordingly I would not be disposed to set aside the planning permission granted to the notice party on this ground.

(b) With regard to the drawings submitted and the alleged breach of the 1994 Regulations, I again conclude that there was substantial compliance with the Regulations and while the applicants' conservatory was not shown on the elevations I am satisfied that this omission was not such as to amount to any breach of the Regulations and on this basis I again would not be disposed to set aside the permission granted to the notice party.

(c) The article 35 procedure:

78.      The application of this procedure without notification was almost inevitably going to keep members of the public, including the applicants in the dark.

79.      Articles 15 and 16 of the 1994 Regulations are directed to the fact that the public should have proper notice of planning applications. Article 17 is directed to the provision of further notice in certain circumstances where the original notification is inadequate. Article 17 (3) indicates that the planning authority may, where it considers it necessary so to do, require the applicant to give further notice, including circumstances were plans, drawings or other particulars are submitted to a planning authority by an applicant in response to an invitation under article 35.

80.      It will be observed that under article 30 of the Regulations a planning authority must in its weekly lists indicate any applications in respect of which revised plans, drawings or other particulars have been submitted to the planning authority pursuant to article 35.

81.      Article 34 of the Regulations indicates the role of the public in making submissions or observations in writing to a planning authority in relation to a planning application. It must be seen that this role of the public relates to applications which have been duly notified.

82.      Article 35 provides as follows:

35. Where a planning authority, having considered a planning application, are (sic) disposed to grant a permission or an approval subject to any modification, of the development to which the application relates, they (sic) may invite the applicant to submit to them (sic) revised plans or other drawings modifying, or other particulars providing for the modification of, the said development and, in case such drawings or particulars are submitted, may decide to grant a permission or an approval for the relevant development as modified by all or any such plans, drawings or particulars.

83.      The use of the term 'modifying' suggests changes of a limited nature such that any changes will be slight or partial. It is clear that a slight change may be such as not to call for any necessity to re-notify a planning application. However, should the proposed change be of a more radical nature, then it is clear that fresh notice may be called for. In the instant case it is clear that the planning authority considered that change of some significance was called for if the proposed development was to get around the reasons advanced for the refusal of the application 1822/99. What resulted from the application of the article 35 procedure in the instant case was a very radical change to what had been proposed and clearly resulted in some of the objectives stressed in the earlier application being ignored, especially that pertaining to the avoidance of overlooking the applicants' property. It is irrelevant that there was no objection to the initial application either in the case of the application 1822/99 or the subsequent application 3006/99. What is relevant is that the modifications invited by the local authority resulted in very significant changes to the original proposal such that the case made to the planning authority at that time by the developer could not be adhered to. This should have alerted the planning authority to the necessity to require the proposed modifications to be the subject of fresh notification. I am satisfied that while the planning authority enjoyed a discretion in regard to the requirement to re-notify this discretion could not be exercised in the instant case by refusing to require fresh notification without seriously undermining the objectives of the planning code and in particular that permitting public consultation. The discretion enjoyed by the planning authority is clearly not absolute and I am satisfied that no reasonable planning authority could have come to the conclusion reached in the instant case that no fresh notification was required under the provisions of Article 17 (32) of the 1994 regulations.

84.      Had the matter been freshly notified I believe that a different position would have obtained and I am not disposed to rule that had the appropriate procedures been followed at the time that it would have been impossible for the respondent to make a decision granting planning permission to the notice party, though it is clear that the planning authority appeared to be resiling from the position adopted in August 1999 in refusing planning permission to the notice party in respect of application 1822/99.

85.      In light of the conclusions I have reached I am satisfied that the applicants have advanced clear grounds showing that if not debarred by the time limit contained in section 82 of the Act of 1963 as amended that they would be entitled to have the decision in question quashed as being made in disregard of the provisions of the Planning Regulations and in circumstances where the decision made to grant the planning permission without the matter being notified afresh was a decision which was irrational and unreasonable.

The Constitutional Issue:

86.      It is conceded that the applicants failed to move to this Court to quash the impugned planning decision within the period of two months specified in section 82 (3B) (a) (i) of the Act of 1963. I previously held that the applicants had the necessary locus standi to challenge the constitutionality of this provision. Nothing advanced in the subsequent hearing before me has caused me to change the view that I previously expressed in this regard. I am satisfied that the applicants did not become aware of the impugned decision until the period of two months provided for in the subsection had already expired and I am satisfied that this fact results directly from the failure of the respondent to direct the modifications invited by the planning authority under the article 35 procedure to be the subject of further notice to be given by the developer, the notice party herein.

87.      The applicants rely on their constitutional right of access to the courts and submit that any limitation of that right must be objectively justified and must respect the applicants' right. It is further submitted that the right of access can be curtailed only to the extent necessary to achieve the objective in question without offending the principle of proportionality.

88.      Particular reliance is placed upon the decision of Costello J. (as he then was) in the case of Brady v. Donegal County Council [1989] ILRM 282, where the learned High Court judge held that the two month limitation period then applying for challenging planning decisions was unreasonable and unconstitutional because of the absence of a saving clause which would enable the court to enlarge the period in favour of a plaintiff in exceptional cases.

89.      In that case, Costello J. referred at p. 286 to the fact that legislation may be required to strike a balance between competing interests. He referred to the Planning Acts affording an example of competing interests between some requirement of the common good and the interests of holders of some constitutionally enshrined right, insofar as they balance between the protection of the environment and the rights of owners of private property.

90.      At p. 287 he stated, inter alia, as follows:

"The purpose in imposing the two month time limit which the new subsection contained was (i) to ensure in the national interest that uncertainty about development applications should be dispelled at the earliest possible date, and (ii) to make applicants for permission and planning authorities aware at an early date that a permission decision was being challenged in legal proceedings so as to enable applications for adjournments of planning appeals to be made and so avoid unnecessary costs and unnecessary waste of time of public officials. Thus, the Oireachtas was balancing on the one hand the public interest in the application of certain aspects of the planning code and on the other the interests of those members of the public who were the holders of a constitutionally protected right to apply to the court to challenge the decisions of planning authorities."

91.      Costello J. indicated that the plaintiffs in the action before him did not quarrel with the imposition by the Oireachtas of a time-bar on the institution of judicial proceedings challenging the validity of such decisions, including the two month limitation, provided it contained a saver to deal with exceptional cases.

92.      Costello J. considered that the plaintiffs' argument in that case derived support from and was based on views expressed in the Supreme Court in Cahill v. Sutton [1980] I.R. 269, where it was submitted that the absence in the Statute of Limitations 1957 of a saver in favour of injured persons who, through no fault of theirs, were unaware of relevant facts until after the expiration of the limitation period had expired, rendered the 1957 Act unconstitutional. Costello J. quoted from the judgment of Henchy J in Cahill v. Sutton (supra) where he stated as follows at p. 288 of the report:

"While in the circumstances of this case the Court is unable to rule on the validity of the claim against the constitutionality of section 11, sub-section 2(b) of the Act of 1957, it is proper to point out that the justice and fairness of attaching to that sub-section a saver such as was inserted by the British Parliament in section 1 of the Limitation Act, 1963, are so obvious that the enactment of our Parliament of a similar provision would merit urgent consideration."

93.      Costello J. having noted the fact that the Supreme Court drew attention to the justice in providing in a Limitation Act a saver in favour of the plaintiffs whose ignorance of their cause of action was not attributable to any fault of theirs, continued:

"A fortiori, a limitation period which contains no saver of plaintiffs whose ignorance of their cause of action is attributable to the defendants wrongdoing would appear to be unjust and, very likely, unconstitutional."

94.      Later at p. 289, having referred to the approach to examination of the constitutionality of limitation sections propounded by Finlay J. (as he then was) in the High Court in the case of Cahill v. Sutton (supra), continued as follows:

"A law which imposes a very short time limit which may deprive a plaintiff of a judicial remedy before he knew he had a cause of action can obviously cause considerable hardship. But if the plaintiff's ignorance of his rights during the short limitation period is caused by the defendant's own wrong-doing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it there must be very compelling reasons indeed to justify such a rigorous limitation on the exercise of a constitutionally protected right. The public interest in (a) the establishment at an early date of certainty in the development decisions of planning authorities and (b) the avoidance of unnecessary costs and wasteful appeals procedures is obviously a real one and could well justify the imposition of stringent time limits for the institution of court proceedings. But if the statute now being considered contained the suggested saver these objectives could be achieved in the vast majority of cases. Certainly the public interest would not be quite as well served by a law with the suggested saver as by the present law, but the loss of the public interest by the proposed modification would be slight while the gain in the protection of the plaintiff's constitutionally protected rights would be very considerable. I conclude therefore that the present serious restriction on the exercise of the plaintiffs' constitutional rights imposed by the two-month limitation period cannot reasonably be justified. Unmodified, the subsection is unreasonable; being unreasonable it is unconstitutional, and I will so declare."

95.      Counsel submitted that the decision in the Brady case is directly applicable to the facts of the instant case and that this court should be guided by same.

96.      On behalf of the Attorney General Mr. Brian Murray submitted in the first place that statutes of limitation necessarily involve restrictions on one's right to sue. He submitted that the choice is one imposed by the Oireachtas in the public interest. The interest of the finality of litigation is what is involved in this regard.

97.      In formulating statutes of limitation the choice will be between long and short periods of limitation which may be absolute or otherwise e.g. subject to extension which may be easy or difficult to obtain. In deciding which to apply the Oireachtas has to strike a balance having regard to the nature of the litigation involved. One will have to have regard to the nature of the interest which the litigation will serve. The public interest may demand a restriction. The decision is one for the Oireachtas. It is submitted that the courts can intervene in the balancing exercise by the Oireachtas in very limited circumstances. It is pointed out that only once have the courts struck down a limitation period. It is submitted that it is not the function of the courts to second guess the Oireachtas.

98.      It is submitted that it is not necessary for the Oireachtas to have a planning code but insofar as it has chosen to legislate the choice is one for the Oireachtas. Having conferred a right to object the Oireachtas is entitled to restrict that right by the same planning code.

99.      Counsel submits that the Oireachtas has recognised the entitlement of a developer to finality and certainty in the planning process and the right of the developer to adjust his financial affairs as well as his right to property. It is submitted that there are different ways to regulate this right, for example in the contrast between the subject provision and the Local Government (Planning and Development) Act, 2000 which has amended the law. It is submitted that the differences do not show that one choice or the other offends the Constitution.

100.      Counsel referred to portion of the judgment of Finlay C.J. in K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R.128 at p. 135 where he stated as follows:

"The general scheme of the sub-section now inserted by the Act of 1992 is very firmly and strictly to confine the possibility of judicial review in challenging or impugning a planning decision either by a planning authority or by An Bord Pleanála. The time limit which has already been mentioned is indicated as being a very short time limit and it is an absolute prohibition against proceeding outside it with no discretion vested to the court to extend time. Secondly, there is a provision contained in the sub-section as inserted that leave shall not granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. Thirdly, in relation to all matters other than constitutional challenge to a statute the determination of the High Court is stated to be final in regard to any such application for leave to apply for judicial review or by way of application for judicial review except in the case, which has occurred in this instant appeal, where a High Court Judge certifies that there is a point of law of exceptional public importance desirable to be heard by the Supreme Court.

101.      From these provisions, it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained planning permission should, at a very short interval after the date of such decision, in the absence of judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision."

102.      Counsel stresses the fact that the Supreme Court emphasised the interest of the protection of the developer in that case.

103.      With reference to the Brady case, [1989] I.L.R.M. 282 counsel submits that at the heart of the High Court decision in that case was the fact that there was no discoverability of the basis of the challenge. On this basis the High Court concluded that the impugned provision was of dubious constitutionality. However, it is pointed out by counsel that this decision pre-dated the decisions of the Supreme Court in the cases of Hegarty v. O'Loughran [1990] 1 IR 148 and Tuohy v. Courtney. [1994] 3 I.R. 1

104.      Counsel points out that the latter decision indicates that it is possible for a limitation period to operate for some purposes, even in the case of most severe consequences. In that case what was at issue was the discoverability of a cause of action and the provision of section 11 of the Acts of Statute of Limitations 1957 was not held to be unconstitutional even though it precluded the plaintiff from making his case. On the same basis it is submitted that in the instant case the impugned provision of the Planning Acts should not be held to be unconstitutional.

105.      Counsel refers to portion of the judgment of Finlay C.J. in Hegarty -v- O'Loughran (supra) at p. 156 of the report where he stated, inter alia, as follows:

"In legislation creating a time limit for the commencement of actions, the time provided for any particular type of action; the absolute or qualified nature of the limit; whether the court is vested with a discretion in certain circumstances in the interest of justice; and the special circumstances, if any, in which exceptions from the general time limit are provided are, with others, all matters in the formulation of which the legislature must seek to balance between, on the one hand, the desirability of enabling persons with causes of actions to litigate them, and on the other hand, the desirability of finality and certainty and the potential liability which citizens may incur into the future.

106.      It is quite clear that what is sometimes classified as the harshness and injustice of a person failing to bring a cause of action to trial by reason of exceeding a time limit not due to his or her own particular fault, may well be counterbalanced by the harshness and injustice of a defendant called upon to defend himself at a time when by the passage of years his recollection, the availability of his witnesses and even documentary evidence relevant to a claim in tort or contract have disappeared."

107.      Counsel submitted that the latter words are inapplicable to a case such as the present where an administrative decision is challenged outside of a limitation period which is only a short time after that determination. However, it is submitted that there may be countervailing considerations arising from the demands of certainty and the undesirability of putting those who wish to develop their property in a situation where such development may be halted or jeopardised by the possibility of an action to prevent such development outside of the applicable period. Counsel referred to the competing interests of owners of the property to be developed with other property owners and stressed that the requirement to seek planning permission is itself a restriction on the rights of property owners and that persons who are granted planning permission should not face the prospect of challenge after the expiry of the limitation period.

108.      Counsel refers to the decision in the case of Tuohy v. Courtney [1994] 3 I.R.1 where a challenge to a limitation period was mounted in circumstances where the plaintiff could not and did not discover the nature, extent or effect of the negligence alleged until after the expiry of the limitation period. In that case the plaintiff, as in this case, sought to argue that the absence of a discretion to extend the limitation period in circumstances where the plaintiff could not have been aware of his cause of action rendered the impugned provision invalid having regard to the provisions of the Constitution.

109.      This argument was rejected by the Supreme Court where, having stated the objectives of statutes of limitation, the Court stated as follows (at p. 48 of the report):

"The counter-balance to these objectives is the necessity as far as is practicable, or as best it may, for the State to ensure that such time limits do not unreasonably or unjustly impose hardship. Any time limits statutorily imposed upon the bringing of actions is potentially going to impose some hardship on some individual. What this Court must do is to ascertain whether the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.

110.      It has been suggested that the facts of this case are almost unique and that what is described as a saver inserted in the time limiting provisions to meet those facts would, if it had been inserted, make no significant difference to the protection which the Act of 1957 affords potential defendants."

111.      The Court stated at p. 49 - 50 of the report:

"For the Oireachtas to reach a decision either to add or not to add to the extensions of limitation periods contained in Part III of the Act of 1957 an extension relating to discoverability with regard to this particular time limit imposed by that Act, is a decision which in the view of this Court can be supported by just and reasonable policy decisions and is not accordingly a proper matter for judicial intervention."

112.      Counsel submits on the basis of this decision that this Court can only intervene to strike down the provision at issue here if it is satisfied that the determination of the legislature to impose the limitation period in question without making provision for any extention of time is one that cannot be supported by just and reasonable policy decisions or, in the words of the Chief Justice, "is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights." It is submitted that in the instant case in no sense can this test be realised.

113.      Based upon what the Supreme Court stated in Tuohy v. Courtney [1994] 3 I.R.1 it is submitted that the High Court must have been wrong in the Brady case. [1989] I.L.R.M. 282

114.      Counsel submits that the approach adopted by the applicants in the instant case is incorrect insofar as it suggests that the combination of a short limitation period and the absence of discoverability converts the provision into one creating an unjust attack on the applicants. Counsel submits that the reality is that no matter how long a limitation period is it will result in people being cut out before knowing about a cause of action. Counsel submits that it is immaterial whether in fact the limitation period is long or short and that one must assume that the Oireachtas is adopting the two month time limit in question considered that persons could bring applications within that period and it is submitted that the question which must be addressed is whether in legislating in the manner at issue in these proceedings the Oireachtas acted unreasonably.

115.      On behalf of the notice party it is submitted that the period of two months provided for in the section is a reasonable limitation period and particular reliance is placed upon the judgment of the Supreme Court in the case of KSK Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128 and the interests identified in that decision.

116.      On behalf of the applicants Mr. Rogers replied to the submissions advanced by counsel for the Attorney General. He submitted that the decision in the case of Tuohy v. Courtney [1994] 3 I.R.1 did not depend on the issue of access to the courts. It is submitted further that that case related to a different area of law and in that case the limitation periods were those pertaining to actions for contract and tort. It is submitted that in the instant case the proceedings being brought are impugning the unlawful acts of the Planning Authority. It is submitted that while the Tuohy v. Courtney case was a private law matter, the instant case is in a matter of public law. Counsel refers to the obligation imposed on the planning authority by s. 26 of the Act of 1963 to have regard to proper planning and development. It is submitted that the instant case and the case of Brady v. Donegal County Council are cases where the lawfulness of an act of a public authority is being challenged.

117.      Secondly, it is submitted that having regard to the Constitution the Oireachtas must favour the judicial determination of alleged unlawfulness. It is submitted that in any event the determination of the issue in the instant case would not pervert the reasoning in Tuohy v. Courtney [1994] 3 I.R.1.

118.      It is submitted, having regard to the powers given by the Planning Acts to planning authorities, that there must be a presumption that unlawful acts may be impugned and that the Oireachtas should not be presumed to condone unlawfulness where it might be proven.

119.      Counsel refers to the three interests identified in the Crodaun Homes case namely those of the planning authority, the public and the developer. Crodaun Homes Ltd. -v- Kildare County Council [1983] I.L.R.M. 1.

120.      It is submitted that while the Court in Tuohy v. Courtney [1994] 3 I.R.1 was balancing the private rights and interests of a plaintiff and a defendant that the issue in the instant case is that of the public good as identified in the Planning Acts. It is submitted that the public interest should dominate in a consideration of the time limit such as that at issue in these proceedings. It is submitted that the common good requires that there should not be an absolute time bar in these cases. Counsel poses the question 'Can it be in the interest of the common good that one allows unlawfulness to prevail?' It is submitted that the Constitution requires citizens to be entitled to invoke the jurisdiction of the High Court under Article 34 to pursue guaranteed rights of access to the Court to pursue unlawfulness of a planning authority. In the instant case counsel identifies this unlawfulness as the failure on the part of the planning authority to direct notice to be given.

Conclusion:

121.      The decision of the High Court in the Brady case [1989] I.L.R.M. 282 was one given at a time prior to the decision of the Supreme Court in the case of Tuohy v. Courtney [1994] 3 I.R.1. However, the test applied by the High Court in that case was essentially the same as applied by the Supreme Court in the case of Tuohy v. Courtney [1994] 3 I.R.1. The question remains whether the decision of the Oireachtas to legislate in the manner in question without the saving clause contended for on the part of the applicants was irrational such as to require this Court to strike down the impugned provision, where the failure of the applicants to bring the proceedings in question was one where the essential blame lies with the planning authority.

122.      Clearly the decision in each case must be one based upon the nature of the restriction and the interests to be served. While the time limit at issue in the case of Tuohy v. Courtney [1994] 3 I.R.1 was a limitation period of 3 years, the limitation in the instant case was one of two months.

123.      The applicants' ignorance of their rights during the short limitation period was caused by the first respondent's own wrong-doing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it. I am satisfied in these circumstances that there must be very compelling reasons indeed to justify such a rigorous limitation on the exercise of a constitutionally protected right. The constitutionally protected right of the applicants is the right to litigate. Against that must be balanced the constitutional right of the notice party in his property to be protected against unjust or burdensome claims. The interest of the public is twofold, namely that constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims. There is also an interest of the public in proper planning and development. The issue in this case is whether the balance contained in the impugned provision is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights. This must be determined from an objective stance.

124.      I am satisfied that the limitation period at issue in this case, in the absence of any saver, is so restrictive as to render access to the courts impossible for persons in the position of the applicants and that as such it must be considered to be unreasonable and therefore unconstitutional. I am satisfied that while the imposition of a limitation period such as that at issue in these proceedings must be such as inevitably to cause some hardship, "the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed". I am satisfied that the decision of the Oireachtas in enacting the impugned provision was a decision which cannot be supported by just and reasonable policy decisions.